528 JACKSON, J., dissenting. courts may exercise jurisdiction in rem over the property without having personal jurisdiction over all of the claimants. Only when they seek to render a party liable to some personal performance must they acquire personal jurisdiction. The difference between a proceeding involving the status, custody and support of children and one involving adjudication of property rights is too apparent to require elaboration. In the former, courts are no longer concerned primarily with the proprietary claims of the contestants for the "res" before the court, but with the welfare of the "res" itself. Custody is viewed not with the idea of adjudicating rights in the children, as if they were chattels, but rather with the idea of making the best disposition possible for the welfare of the children. To speak of a court's "cutting off" a mother's right to custody of her children, as if it raised problems similar to those involved in "cutting off" her rights in a plot of ground, is to obliterate these obvious distinctions. Personal jurisdiction of all parties to be affected by a proceeding is highly desirable, to make certain that they have had valid notice and opportunity to be heard. But the assumption that it overrides all other considerations and in its absence a state is constitutionally impotent to resolve questions of custody flies in the face of our own cases. The wife's marital ties may be dissolved without personal jurisdiction over her by a state where the husband has a genuine domicile because the concern of that state with the welfare and marital status of its domiciliary is felt to be sufficiently urgent. Certainly the claim of the domiciled parent to relief for himself from the leave-taking parent does not exhaust the power of the state. The claim of 457. Harris v. Balk, 198 U. S. 215; Thompson v. Whitman, 18 Wall. 6 Pennoyer v. Neff, 95 U. S. 714. MINTON, J., dissenting. 345 U.S. children as well as the home-keeping parent to have their status determined with reasonable certainty, and to be free from an incessant tug of war between squabbling parents, is equally urgent. The mother in this case would in all probability not be permanently precluded from attempting to redetermine the custody of the children. If the Wisconsin courts would allow modification of the decree upon a showing of changed circumstances, such modification could be accomplished by another state which acquired jurisdiction over the parties. Halvey v. Halvey, 330 U. S. 610; cf. Lynde v. Lynde, 181 U. S. 183. And, of course, no judgment settling custody rights as between the parents would itself prevent any state which may find itself responsible for the welfare of the children from taking action adverse to either parent. No such case is before us. I fear this decision will author new confusions. The interpretative concurrence, if it be a true interpretation, seems to reduce the law of custody to a rule of seize-andrun. I would affirm the decision of the Ohio courts that they should respect the judgment of the Wisconsin court, until it or some other court with equal or better claims to jurisdiction shall modify it. MR. JUSTICE MINTON, dissenting. The opinion of the Court and the dissent of MR. JUSTICE JACKSON deal with a jurisdictional question not raised on the record. As I understand the law of Ohio, "parents are the legal and natural custodians of their minor children and each parent has an equal right to their custody in the absence of an order, judgment, or decree of a court of competent jurisdiction fixing their custody. Section 8032, General Code. It is well settled that habeas corpus is not the proper or appropriate action to determine, as between parents, who is entitled to the custody of their minor 528 MINTON, J., dissenting. children." In re Corey, 145 Ohio St. 413, 418, 61 N. E. 2d 892, 894-895. The instant case was a proceeding in Ohio by habeas corpus brought by the father against the mother for the possession of the minor children. The father could not succeed in this habeas corpus action unless he could show that he had an order of a court of competent jurisdiction awarding him the custody of the children. He produced an authenticated copy of a decree of the County Court of Waukesha County, Wisconsin, valid on its face and unappealed from, which awarded him the custody of the children. It is not contended that this decree is void upon its face, nor did appellant, the mother, challenge its validity in Ohio by any responsive pleading to the petition for habeas corpus. The only question before the Ohio court was whether that court should give full faith and credit to the Wisconsin decree. That unappealed decree was valid on its face, and its validity was not attacked by any pleading. The validity of the decree is not affected by any admission in this case, on or off the record. As far as this record is concerned, the decree of the Wisconsin court was what it purported to be on its face. Since appellant failed to challenge its validity by any pleading, the decree 'was entitled to full faith and credit in Ohio under Art. IV, § 1 of the United States Constitution. The Ohio court properly accorded the decree full faith and credit, and it was evidence, together with parenthood, which proved the father's right to possession of the children and entitled him to succeed in the proceeding. I would therefore affirm. WATSON ET AL. v. COMMISSIONER OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 290. Argued February 2, 1953. Decided May 18, 1953. For several years, a taxpayer held an undivided interest in an orange grove and engaged in the business of growing and selling the oranges it produced. In the midst of the 1944 growing season, she sold her interest in the grove, including an unmatured crop then on the trees. Held: For federal income tax purposes, under § 117 (j) of the Internal Revenue Code, as in effect in 1944, she must treat that part of her profit from the sale which is attributable to the unmatured crop as ordinary income-not as a capital gain. Pp. 545–553. (a) It is immaterial that, under the law of the state where the land is situated, an unmatured, unharvested crop is treated as real property for many purposes. P. 551. (b) In the circumstances of this case, the proceeds of the sale fairly attributable to the crop were derived from property "held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business," within the meaning of § 117 (j), as it existed in 1944. Pp. 551-552. 197 F.2d 56, affirmed. The Tax Court sustained a deficiency assessed by the Commissioner of Internal Revenue against petitioners, but reduced the amount. 15 T. C. 800. The Court of 2d 56. This Court granted Affirmed, p. 553. Appeals affirmed. 197 F. certiorari. 344 U. S. 895. Arthur McGregor argued the cause for petitioners. With him on the brief was A. Calder Mackay. With Ellis N. Slack argued the cause for respondent. him on the brief were Solicitor General Cummings, Assistant Attorney General Lyon and Hilbert P. Zarky. Chester H. Ferguson and George W. Ericksen filed a brief for Edwards et al., as amici curiae, supporting petitioners. MR. JUSTICE BURTON delivered the opinion of the Court. This case relates to a taxpayer who, for several years, held an undivided interest in an orange grove and engaged in the business of growing and selling the oranges it produced. In the midst of the 1944 growing season, she sold her interest in the grove, including an unmatured crop then on the trees. The question before us is whether, for federal income tax purposes, she must treat that part of her profit from the sale which is attributable to the unmatured crop as ordinary income or as a capital gain. For the reasons hereafter stated, she must treat it as ordinary income. In 1944, Mrs. M. Gladys Watson, one of the petitioners here, and her two brothers, each owned an undivided onethird interest in a 110-acre navel orange grove near Exeter, Tulare County, California. Its management had been supervised by her brothers since 1912 and, since 1942, she and her brothers had operated it as a partnership. It was the oldest and one of the best groves in the locality. Its production per acre was about twice the average of such production in the county. In each of the last five years the value of its crop had increased over that of the year before. In 1943 it produced 79,851 loose boxes of oranges, yielding a gross income of $136,808.71. After deducting all expenses of cultivation, operation, picking and hauling, a net income of $92,153.05 was left. Anticipating a heavy frost after November, 1 In 1942 it yielded 54,939 boxes with a gross income of $82,521.17 and a net of $49,790.10. Its average annual yield from 1934 to 1943 was 55,097 boxes with a gross income of $46,512.68 and a net of $22,141.42. |